Citation Nr: 1002490
Decision Date: 01/14/10 Archive Date: 01/22/10
DOCKET NO. 06-12 701 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent
for posttraumatic stress disorder (PTSD), with mood disorder
not otherwise specified, to March 12, 2008; and entitlement
to a rating in excess of 70 percent from March 13, 2008
thereafter.
2. Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service connected
disability.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Tabitha G. Macko, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1965 to January
1969.
This appeal arose before the Board of Veterans' Appeals
(Board) from an October 2005 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO),
which granted service connection for PTSD with a 10 percent
rating. Following the Veteran's disagreement, the RO
increased his evaluation to 30 percent in January 2006 rating
decision, effective the date of claim, August 6, 2004;
however, this was not a full grant of the benefit sought on
appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The
Veteran perfected his appeal.
The Veteran testified before the undersigned in February 2009
at a travel board hearing held at the RO. A transcript has
been incorporated into the record. At the hearing the
Veteran submitted additional evidence with a waiver of RO
review.
This matter came before the Board in May 2009, which remanded
for further development. There has been substantial
compliance with the remand order. See Stegall v. West, 11
Vet. App. 268, 271 (1998). In October 2009 the RO increased
the PTSD evaluation to 70 percent, effective March 13, 2008,
and granted service connection to mood disorder not otherwise
specified, combined within the same rating. As this was not
a full grant of the benefit sought on appeal, the matter is
now before the Board. See AB v. Brown, 6 Vet. App. 35, 39
(1993).
FINDINGS OF FACT
1. The competent and probative medical evidence of record
demonstrates that the Veteran's PTSD with mood disorder, not
otherwise specified, was characterized by depressed mood,
anxiety, irritability, anger, and difficulty maintaining
employment relationships prior to March 13, 2008.
2. The competent and probative medical evidence of record
demonstrates that the Veteran's PTSD with mood disorder, not
otherwise specified, was not productive of total occupational
or social impairment due to such symptoms as gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place,
memory loss for names of close relatives, own occupation, or
own name at any point after March 13, 2008.
3. The Veteran's PTSD is rated as 70 percent disabling.
4. The Veteran has been continuously employed throughout the
pendency of the appeal.
5. The Veteran's service-connected disability does not
preclude substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 30
percent for PTSD have not been met prior to March 18, 2008,
and the criteria for a rating in excess of 70 percent for
PTSD have not been met thereafter. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§
3.159, 4.1, 4.7, 4.130, Diagnostic Code 9435 (2009).
2. The criteria for entitlement to a TDIU have not been met.
38 U.S.C.A. §§ 1155, 5103A, 5103, 5107 (West 2002); 38 C.F.R.
§§ 3.159, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Legal Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
This appeal arose from a disagreement as to the initial
disability evaluation that was assigned for PTSD. This
matter therefore is to be distinguished from one in which a
claim for an increased rating of a disability has been filed
after a grant of service connection. The United States Court
of Appeals for Veterans Claims (Court) has observed that in
the latter instance, evidence of the present level of the
disability is of primary concern, Fenderson v. West, 12 Vet.
App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App.
55 (1994)), and that as to the original assignment of a
disability evaluation, VA must address all evidence that was
of record from the date the filing of the claim on which
service connection was granted (or from other applicable
effective date). See Fenderson, 12 Vet. App. at 126-27.
Accordingly, the evidence pertaining to an original
evaluation might require the issuance of separate, or
"staged," evaluations of the disability based on the facts
shown to exist during the separate periods of time. Id.
When after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability such doubt will be resolved in favor of
the claimant. 38 C.F.R. § 4.3.
Discussion
30 Percent before March 12, 2008
The Veteran has been assigned a 30 percent evaluation for his
PTSD, with mood disorder not otherwise specified, pursuant to
38 C.F.R. § 4.130, Diagnostic Code 9435 (2009). Under the
current schedular criteria, Diagnostic Code 9435 is evaluated
under the general rating formula used to rate psychiatric
disabilities. 38 C.F.R. § 4.130 (2009).
A 30 percent disability evaluation is assigned under the
general rating formula for mental disorders where the
evidence shows occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, or recent
events). 38 C.F.R. § 4.130.
A 50 percent disability evaluation is assigned where the
evidence demonstrates occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment in
short-term and long-term memory (e.g., retention of only
highly learned material, forgetting to complete tasks);
impaired abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining effective
work and social relationships. Id.
A 70 percent disability evaluation requires occupational and
social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking or mood,
due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work like
setting); inability to establish and maintain effective
relationships. Id.
A 100 percent disability evaluation is warranted where the
evidence shows total occupational and social impairment, due
to such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; inability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. Id.
The GAF is a scale reflecting the psychological, social, and
occupational functioning on a hypothetical continuum of
mental-health illness. See Richard v. Brown, 9 Vet. App.
266, 267 (1996), citing the Diagnostic and Statistical Manual
of Mental Disorders (4th ed.1994). A GAF score of 31 to 40
is defined as some impairment in reality testing or
communication (e.g., speech is at times illogical, obscure,
or irrelevant) or major impairment in several areas, such as
work or school, family relations, judgment, thinking, or mood
(e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children,
is defiant at home, and is failing at school). A GAF score
of 41 to 50 is defined as denoting serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifter) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job). A score of 51 to 60 is defined as indicating
moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers). See Carpenter
v. Brown, 8 Vet. App. 240, 242-244 (1995). A score of 61 to
70 indicates the examinee has some mild symptoms or some
difficulty in social, occupational, or school functioning,
but generally functions pretty well with some meaningful
interpersonal relationships. See Quick Reference to the
Diagnostic Criteria from DSM-IV, 46-47 (1994).
After reviewing the evidence of record, the Board finds the
initial evaluation of 30 percent for the Veteran's service-
connected PTSD to be appropriate for the rating period from
the date of claim, August 6, 2004, to March 12, 2008.
A review of the Veteran's service treatment records finds no
diagnosis or request for treatment for any mental health
disorder. In a statement, the Veteran reported he quit two
jobs and was fired from two others, all selling insurance, in
the course of the 1990's because he could not get along with
his bosses. See December 2007 statement. The claims file
contains no mental health treatment records, VA or private,
dated prior to the August 2004 date of claim. VA treatment
began in the record in November 2004.
The evidence of record does not demonstrate any evidence of
speech or thought disorders. The Veteran's three VA PTSD
examinations each found that he had no impairment of thought
process or communication (August 2005), he was logical,
coherent and relevant (December 2006 and September 2007).
The September 2007 VA examiner did note the Veteran had a
blunted affect on that day.
The competent evidence also fails to show any panic attacks.
The Veteran did not report having any panic attacks and in
his testimony he stated he didn't know what they were.
Throughout the treatment reports Veteran did report
hypervigilance, reluctance to be in crowds, the need to have
his back to a wall in restaurants, and nightmares more than
twice a week. See May 2007 VA treatment report.
No treatment reports indicate any difficulty understanding
complex commands.
The Board notes there is evidence of some memory impairment.
The November 2004 initial evaluation noted the Veteran's
memory was intact for both remote and recent events. The
Veteran reported short and long term memory problems to the
examiner for the December 2006 VA PTSD examination; however
the Veteran also reported the precise date in 1966 he was
almost shot. His May 2007 VA treatment report noted
complaints of impaired short term memory. The Veteran
reported to the examiner of the September 2007 VA examination
some short term memory problems that affected his work,
specifically occasions of the Veteran going to meetings but
not bringing all of his materials.
Nearly every treatment report, including the VA PTSD
examination reports included the Veteran's complaints of
disturbances in motivation and mood. A May 2005 PTSD
evaluation noted his mood was anxious and sad. The Veteran
regularly complained of reluctance to market himself and
respond to referrals for his business, slow getting up in the
morning and slow to work at his at-home office. See February
2006 Veteran Statement, May 2007 VA treatment report, and
September 2007 VA examination. Further, treatment reports
and examinations uniformly describe the Veteran's
experiencing irritability and being easily angered. A
November 2005 personal statement by a friend reported his
quick irritability which made the Veteran difficult to talk
to. While the Board acknowledges this symptom's impact on
the Veteran's occupational and social relationships, the
Board concludes that such findings fail to demonstrate that
the disturbances in motivation and mood affect the Veteran's
ability to function independently, appropriately, and
effectively to such an extent as to warrant the next-higher
50 percent rating under Diagnostic Code 9435 for this rating
period.
There is considerable evidence of the Veteran's difficulty in
establishing and maintaining effective work and social
relationships, but, the overall evidence shows that these
difficulties are not nearly severe enough to warrant the 50
percent rating for this rating period. The Veteran's August
2004 claim was accompanied by an August 2004 statement from
his employer informing him of his being placed on probation
for not meeting the minimum production level for 2003.
Throughout the treatment reports the Veteran was worried
about meeting his yearly requirements in his profession of
insurance sales; however, the Veteran remained employed
within the one industry, insurance sales. According to
yearly Producer Tax Summaries, submitted by the Veteran after
his testimony, as of the December 2004 paydate, the Veteran
did meet his contractual requirements for 2005. The Producer
Tax Summary for the paydate December 2005 indicated he did
not meet his contractual obligation for 2006, but he did meet
his obligation for 2007. Therefore, the Veteran remained
consistently employed, or under contract as the case may be,
with the same company, on either a full time, or 35 hour a
week basis in this rating period in an occupation that
requires interactions with people. See also September 2007
VA PTSD examination.
Regarding social relationships, the Veteran remains married
to his current wife of over two decades. He had two children
in addition to stepchildren (December 2006 VA PTSD
examination) and reported relationships with them. In his
November 2004 initial evaluation, he described his wife as
supportive. The September 2007 VA examination noted that the
Veteran had begun taking medication the previous December due
to marital discord. Treatment reports in June and July 2007
noted reports that his wife was irritated with his mood. The
Veteran consistently reported a preference to remain at home;
however, in the December 2006 VA examination he reported
attending a monthly poker game and occasionally going out to
the movies. By the September 2007 VA examination he reported
he was not doing them as much any more and that up until a
couple of months prior to the exam he played basketball daily
at lunch.
The Board concedes that the Veteran has problems in
maintaining work and social relationships, but the
preponderance of the evidence is against finding that his
PTSD results in disturbances in the Veteran's work and social
relationships to a degree consistent with a higher disability
rating, for this rating period. In essence, while the
Veteran may have some intermittent periods of occupational
and social impairment, as described in the 30 percent rating,
it does not rise to the level of reduced reliability and
productivity or difficulty in establishing and maintaining
effective relationships, as described in the 50 percent
rating.
The Board also recognizes the Veteran's GAF scores throughout
the pendency of his appeal. The record indicates GAF scores
of 50 in August 2005, 45 in February 2006, 55 in December
2006, and 55 in September 2007. These scores are found to be
consistent with the demonstrated symptomatology of record.
Such GAF scores are indicative of moderate symptoms, but when
considering the evidence as a whole, do not justify
assignment of the next-higher 50 percent rating. An
evaluation is based on all the evidence of record that bears
on occupational and social impairment rather than solely on
the examiner's assessment of the level of disability at the
moment of the examination. 38 C.F.R. § 4.126(a).
The Board is aware that the symptoms listed under the 50
percent evaluation are essentially examples of the type and
degree of symptoms for that evaluation, and that the Veteran
need not demonstrate those exact symptoms to warrant a 50
percent evaluation. Nevertheless, the Board finds that the
record does not show the Veteran manifested symptoms that
equal or more nearly approximate the criteria for a 50
percent evaluation for the rating period on appeal. See
Mauerhan v. Principi, 16 Vet. App. 436 (2002).
The Veteran submitted private treatment reports, dated
September and October 2007, and two statements, dated March
and September 2007, from Dr. F. The September and October
2007 treatment reports are probative, though largely
duplicative of the information contained in the VA reports of
the counseling sessions the Veteran regularly attended. The
March and September 2007 opinion letters are of little
probative value. In these letters the private doctor appears
to give an opinion as to the Veteran's rating, finding a
rating of 65 percent more appropriate. In no letter does the
doctor identify himself as a psychiatrist, though in his
testimony before the Board the Veteran referred to him as a
psychiatrist. The doctor never states his mental health
expertise, how often he treated the Veteran, or for what
condition. The letters, when they convey any information
about the Veteran himself, again repeat information about
symptoms already found in VA treatment reports in addition to
other personal history of the Veteran. Further, the doctor
refers to the Veteran as "60ish", which suggests he didn't
know the Veteran's age, and the statement that the Veteran
came from a "fairly good family system" is in direct
contradiction to the Veteran's many reports to VA examiners
that his mother was an alcoholic, he never knew his
biological father, his mother married several times and that
he witnessed his stepfathers being abusive to her. (See
December 2006 VA examination; February 2005 VA psychological
assessment; November 2004 VA PTSD assessment). The doctor's
opinion about the rating is of no value. There is no 65
percent rating, and the doctor never explains on what basis a
"65" percent rating would be appropriate as opposed to
another percentage.
The Board is free to favor one medical opinion over another,
provided it offers an adequate basis for doing so. See Evans
v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet.
App. 429, 433 (1995). Whether a physician provides a basis
for his or her medical opinion goes to the weight or
credibility of the evidence in the adjudication of the
merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382
(1998). Other factors for assessing the probative value of a
medical opinion are the physician's access to the claims
folder and the thoroughness and detail of the opinion. See
Prejean v. West, 13 Vet. App. 444, 448-9 (2000). See Nieves-
Rodriguez v. Peake, 22 Vet. App. 295 (2008)(it is the
factually accurate, fully articulated, sound reasoning for
the conclusion, not the mere fact that the claims file was
reviewed, that contributes probative value to a medical
opinion).
The Veteran's PTSD with mood disorder not otherwise
specified, does not more nearly exhibit the symptoms required
to warrant the next higher evaluation within this rating
period. See Fenderson v. West, 12 Vet. App. 119 (1999).
70 Percent from March 13, 2008
The Board also finds that the VA treatment reports of March
2008 bore a marked change from earlier reports such that a 70
percent rating effective March 13, 2008 is supported by a
preponderance of the evidence. The treatment report dated
March 13, 2008, noted the diagnosis of major depression along
with PTSD, as well as the Veteran's report he was actually
worse after an increase in medication. The Board
acknowledges the Veteran's October 2009 statement; however,
for the reasons discussed above and below, the Board finds
the ratings periods on appeal to be appropriate.
Gross impairment in thought processes or communication is not
found in the VA treatment records. The March 13, 2008,
treatment report found his thinking linear and his insight
and judgment were intact. The August 2009 VA PTSD examiner
found his thought processes normal.
The record contains no evidence of psychosis, delusions, or
hallucinations. See August 2009 VA examination report. The
Veteran did report intrusive thoughts about his war
experience 5 days a week, as well as nightmares and brief
flashbacks after a trigger event such as a loud sound.
The record contains no accounts of grossly inappropriate
behavior, nor did the Veteran report any such behavior.
No examiner found the Veteran in persistent danger of hurting
himself or others. The Veteran consistently denied suidicial
and homicidal thoughts.
There were no reports of the Veteran being unable to perform
activities of daily living, to include maintenance of minimal
personal hygiene, and the Veteran made no reports of any
reluctance to shower or the like. The August 2009 examiner
found him casually, but neatly dressed and that his grooming
was casual.
There were no reports of disorientation as to time or place
or of loss of memory for names of close relatives, the
Veteran's own occupation or own name.
The Board is aware that the symptoms listed under the 100
percent evaluation are essentially examples of the type and
degree of symptoms for that evaluation, and that the Veteran
need not demonstrate those exact symptoms to warrant a 100
percent evaluation. Nevertheless, the Board finds that the
record does not show the Veteran manifested symptoms that
equal or more nearly approximate the criteria for a 100
percent evaluation for the rating period on appeal. See
Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Extraschedular Consideration (38 C.F.R. § 3.321(b))
In this instance, the symptoms of the Veteran's PTSD with
mood disorder not otherwise specified are clearly accounted
for in the 30 percent evaluation prior to March 13, 2008, and
the 70 percent thereafter, which compensates for the
occupational and social impairment. The Board finds the
Diagnostic Code adequately addresses the Veteran's symptoms.
The Veteran has not claimed any hospitalization because of
his mental disorder, has sought regular treatment, and
remains employed in the same industry, insurance sales,
albeit not on a full time basis. As such, the diagnostic
code for the Veteran's service-connected PTSD with mood
disorder not otherwise specified, adequately describes the
current disability levels and symptoms and, therefore, a
referral for an extraschedular rating is not warranted. See
Thun v. Peake, 22 Vet. App. 111, 115 (2008).
TDIU
A TDIU may be granted upon a showing that the veteran is
unable to secure or follow a substantially gainful occupation
due solely to impairment resulting from his or her service-
connected disabilities. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). Consideration may be
given to a veteran's level of education, special training,
and previous work experience in arriving at a conclusion, but
not to his or her age or the impairment caused by nonservice-
connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19
(2009).
To qualify for a total rating for compensation purposes, the
evidence must show (1) a single disability rated as 100
percent disabling; or (2) that the disabled person is unable
to secure or follow a substantially gainful occupation as a
result of his or her service-connected disabilities and there
is one disability ratable at 60 percent or more, or, if more
than one disability, at least one disability ratable at 40
percent or more and a combined disability rating of 70
percent. Id.
In determining whether the veteran is entitled to a total
disability rating based upon individual unemployability, his
non-service-connected disabilities and advancing age may not
be considered. 38 C.F.R. § 3.341(a) (2009).
Although in Rice v. Shinseki, 22 Vet. App. 447 (2009), the
United States Court of Appeals for Veterans Claims (Court)
held that a TDIU claim is part of an increased rating claim
when such claim is raised by the record, in this case, the
criteria for entitlement to a TDIU are not met.
The Board acknowledges the 70 percent rating for PTSD.
However, it notes that the record shows that the Veteran
remains employed in insurance sales as of the February 2009
Board hearing and the August 2009 VA PTSD examination, albeit
in a part-time, 20 hours a week capacity. Further, after a
question by his representative, the Veteran denied plans to
retire during the 2009 hearing, citing the general economy.
The Veteran has remained substantially gainfully employed and
primarily, his difficulties are due to national economic
problems. See August 2009 VA examination. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). As
noted above, in 2007 the Veteran maintained his quotas at
work, and in 2008, although he had difficulties at time
remaining motivated, he also was noted to be very busy at
work on other occasions.
In sum, although the Veteran's disability rating meets the
percentage requirement, the objective evidence of record
fails to demonstrate that his PTSD renders him unable to
obtain or maintain employment. 38 C.F.R. § 4.16. The appeal
is denied in this regard.
As the preponderance of the evidence is against the claim,
the benefit of the doubt rule is not applicable. See 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-
56 (1990).
Duty to Notify and Duty to Assist
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. In the notice, VA will inform the claimant which
information and evidence, if any, that the claimant is to
provide to VA and which information and evidence, if any,
that VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16
Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006). Notice should also address the rating
criteria and effective date provisions that are pertinent to
the appellant's claim. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The RO provided the appellant pre-adjudication notice by
letter dated in October 2004. Another complete notice was
sent in July 2009 and the claim was readjudicated in an
October 2009 supplemental statement of the case. Mayfield,
444 F.3d at 1333; Dingess.
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service connection claim has been more
than substantiated, it has been proven, thereby rendering 38
U.S.C.A. § 5103(a) notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006);
Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant
bears the burden of demonstrating any prejudice from
defective notice with respect to the downstream elements.
Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has
not been met in this case.
Nevertheless, the record reflects that the appellant was
provided a meaningful opportunity to participate effectively
in the processing of his claim such that any notice error did
not affect the essential fairness of the adjudication now on
appeal. The appellant was notified that his claim was
awarded with an effective date of August 6, 2004, the date of
his claim, and a 30 percent rating was ultimately assigned.
He was provided notice how to appeal that decision, and he
did so. He was provided a statement of the case that advised
him of the applicable law and criteria required for a higher
rating and he demonstrated his actual knowledge of what was
required to substantiate a higher rating in his argument
included on his Substantive Appeal. See also June 2008
Notice. Although he was not provided pre-adjudicatory notice
that he would be assigned an effective date in accordance
with the facts found as required by Dingess, he was assigned
the date of the claim as an effective date, the earliest
permitted by law. 38 U.S.C.A. § 5110(a).
Moreover, the record shows that the appellant was represented
by a Veteran's Service Organization and its counsel
throughout the adjudication of the claims. Overton v.
Nicholson, 20 Vet. App. 427 (2006).
Thus, based on the record as a whole, the Board finds that a
reasonable person would have understood from the information
that VA provided to the appellant what was necessary to
substantiate his claim, and as such, that he had a meaningful
opportunity to participate in the adjudication of his claim
such that the essential fairness of the adjudication was not
affected.
VA has obtained service treatment records, assisted the
appellant in obtaining evidence, afforded the appellant
examinations in August 2005, December 2006, September 2007,
and August 2009, obtained medical opinions as to the etiology
and severity of the disability, and afforded the appellant
the opportunity to give testimony before the Board. The
Board notes the Veteran submitted two opinion letters (March
2007, September 2007) from a private doctor, Dr. F., as well
as the September and October 2007 private treatment records
from that doctor's office. During his testimony before the
Board, the Veteran stated that those were the only
consultations with this private doctor. All known and
available records relevant to the issues on appeal have been
obtained and associated with the appellant's claims file; and
the appellant has not contended otherwise.
ORDER
Entitlement to an initial evaluation in excess of 30 percent
for PTSD with mood disorder not otherwise specified, is
denied prior to March 13, 2008, and entitlement to an
evaluation in excess of 70 percent thereafter is denied.
Entitlement to a TDIU is denied.
____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs